42 A.D.2d 719 | N.Y. App. Div. | 1973
Appeal by defendants from two judgments (one as to each defendant) of the County Court, Westchester County, rendered May 5,1971, convicting them of possession of gambling records in the first degree, upon a jury verdict, and sentencing them to a one-year penitentiary term. Judgments reversed, on the law, and new trial ordered. The facts upon which the judgments are based have been considered and determined to have been established. Upon the voir dire conducted pursuant to former 22 NYCRR 20.13, the trial court denied defendants an examination of prospective jurors concerning prejudice against persons of Italian origin, saying, "I don’t care whether you want to call it Irish, German, American, Jewish, or anything else. I’m not going to ask that pointed question, and you, of course, have an exception, sir.” Reversible constitutional error was thus committed, for an ethnic bias, often as invidious as a religious or racial bias, is a particular challenge for cause which would disqualify a juror from serving in <the case (Code Crim. Pro., §§ 374, 376; People v. Leonti, 262 N. Y. 256; cf. Ham v. South Carolina, 409 U. S. 524). Reversible error was committed, too, by the trial court’s limitation of defendants’ cross-examination of the People’s expert witness concerning his computation of the number of policy plays represented on the paper allegedly found in defendants’ possession. In the absence of the latter errors, we would modify the judgments by reducing the offense of which defendants were convicted to possession of gambling records in the second degree (Penal Law, § 225.15), because, in our opinion, a number played in a policy scheme as a combination number represents but one play or
